so the whole thing in my opinion is moot. . i believe that miss herrick, may have also have wrongly claimed that the california evidence code 1040, and its definition of official information, may have been misquoted and she may have incorrectly relied on deputy city attorney improper letter to the sunshine ordinance task force in which he wrongly combined two or three of dr. derek kurr's complaints under one ball of wax wrongly. he made a mistake when he did

that. in section 1040 is not whether disclosure is permitted, it is whether disclosure is forbidden. jerry made that lettering error. how a deputy city attorney can confound forbidden can permitted and then, deputy city attorney herrick fell into the same mix is really disturbing. >> let me ask you about that mr. hau. because c3-699-13, appears to use the term to the extent permitted by state law.

>> i draw your attention, commissioner hur to section 1040 b. i'm assuming that state law takes precedence over 699-13. i would assume, sir, that you would know that 1040 should take precedence over the city charters or this particular government conduct code which is not even at the city charter level, if i am right. >> 1040 b, clearly states, a public entity is a privilege to refuse to disclose official information... unless

disclosure is forbidden. there is nothing >> in the act of the u.s. congress or any other statue that forbids the disclosure of the information that i am seeking. >> except that there is another paragraph, mr. shaw. i mean the basis for miss herrick's analysis is 1040 b2. she is not claiming that there is an act of congress that forbids this. she is claiming that the necessity for perceiving confidentiality out weighs disclosure. >> commissioner hur, let me respond to that question and that is, sunshine ordinance, if you have ever read it

specifically bars every agency in san francisco from exerting the official information privilege under that balancing test. >> didn't you just tell me that state law trumps the city charter and all city ordinances? >> i mean, what you just were arguing one minute ago. and ber raiding my legal knowledge on the basis of that is how you accurately interpret the law. but you can proceed on whatever additional subtanive additional arguments that you have. >> the sunshine ordinance is quite clear. you cannot use that balancing test, any balancing test with 1040 or 6254.7 and,.13.

you can't use balancing tests, not in san francisco. >> i believe somewhere along the lines, the ethics commission in their response which the sunshine ordinance task force rejected, indicated that the ethics commission, the ethics commission staff indicated and i believe so did

the city controller, that they were withholding based on 6254 f. that did not apply either ethics, our ethics commission, or to the city controller's office. 6254 f, says that records of complaints are investigations conducted by or records of intelligence information or security procedures of the office of attorney general and the department of justice. and any state or local police agency or any investigate compiled by any other state or local police agency those

records can be withheld. you are saying the ethics commission, the ethics commission staff and the city controller are not police agencies of any sort whatsoever. so their reliance on 6254 is also incorrect. >> i agree that we are not a police agency, but one of the questions that i had was what the definition of a law enforcement agency is since we are enforcing a set of laws for which we have a particular responsibility. it does not make us a police agency or a correctional agency. but does it make us a law enforcement entity, given our

responsibility to enforce particular laws, some of which have no one else to enforce them? that is a legal question that i would be interested from hearing from miss herrick on that one. >> certainly, so i would not call the ethics commission a law enforcement agency under 6254 f, typically that it does reply on the police agency and fire departments when they are doing arson investigations for example, may be law enforcement agencies... i don't... i don't recall seeing that anywhere in the materials, a reliance on 6254 f, i did not rely on 6254 f. there are other state laws that protect the disclosure of confidential information in the government code 6276 and 6276.32, which are part of the public records act, as well as

the government code section that the controller's office relies on in terms of the protection of the whistle blower complaints and that is government code section 53087.6. so while i agree, with mr. shaw that the reliance on 6254 f of the government code would not be appropriate, there are other code sections that do protect the disclosure of confidential information and they have been cited in my memo to the commission. >> mr. shaw, i think that you... >> wait. >> you have exhaustively gone through your arguments. i have already given you far more than we would give someone if we were using the new procedures. >> you just dismiss it. >> i am going to give you three more minutes to provide, i

think, that we have already gotten through about page 8 of your arguments that you have explained. so i will give you a few more minutes. >> in the... to miss herrick's comment now that there are other codes that may be involved, curiously, and more curiously, none of those have been mentioned to date. it sounds much like the markarini case in which you first rejected out-right, all six of the amended charges against him and then you made up a hybrid charge right before, august, 19th hearing concluded. mr. markarini had all but a minute and a half to realize that he had a new charge against him and now what miss herrick is indicating is that some other citation, which is

never previously been provided to me is now being used? >> pretty sure... >> it is on page 4, of 17 of her memo. >> september 6th, memo refers to the two sections which she just noted. >> it was not her position to raise that type of commission commissioner studley, if anyone wanted to use it should have been the controller or the ethics commission. it should not have been an independent, so-called independent reviewer coming up with that citation, after the fact. i am going to repeat myself. i don't believe that you should be hearing this case. and i'm asking you again, to transfer it to the oakland

ethics commission. thank you. >> as a matter of record, i'm not even clear that the oakland ethics commission is operational and i think that they have been disbanded or suspended in light of lack of funding. miss herrick, we invite your response and thank you for being on the phone with us. >> certainly. i'm happy to answer any specific questions. there were other things that mr. shaw pointed out, i think that i have responded to the bulk of them. no, no. let me say this. there was a question from one of the commissioners, and i apologize since i am not personally there i cannot track you as well as i could have as if i were personally present. but i do, there was a question asked of mr. shaw about isn't

the whistle... excuse me, the fund whistle blower complaint, isn't that an ethics issue? and that is exactly the way that i view it. it is. you are questioning the use of the gift fund, that is absolutely an ethics issue and it does come within the charter section c-no, c3.699-1 3a. and the other point that i would make is that in looking at the record that are protected under that charter section, you are looking at the underlying records, not the basis of the complaint that mr. menetshaw filed. although i was frankly, if the complaint that was being investigated had something to do with the public record, honestly i think that public records open meetings, those

are all governmental transparency laws i think that they all come under the big umbrella of governmental ethics. but the point that i am really making is that the whistle blower, related to an issue that is protected under the charter section. >> miss herrick, i have a question with with respect to the application of 1040 d2? >> yes. >> one thing... what do you believe constitutes the necessity for preserving the confidentiality of the information that out weighs the necessity for the disclosure in the interest of justice? >> from the controller's perspective, obviously they are investigating a whistle blower complaint and it is in the

public agency's best interest to protect whistle blowers and i think that there may have been a question or a concern about why can't whistle blowers wave the complaint that they made. why can't she they consent to have their consent be made public. >> and the reason that is why protected by state law, and not to the individual who makes the whistle blower complaint is there really is a governmentle interest in protecting the integrity of the complaints that have been made. any complaintant would be subject to pressure, to open up a complaint or an investigation. and to the extent that the investigation led to additional witnesses, or complaintants, who provided some information by opening up the entire complaint and investigation,

you are opening up the threat of retaliation to others who may have been involved in the complaint. i think that it is comparable to a criminal investigation, in a criminal prosecution, a victim makes a complaint, many times, the victims recount what has gone on, but just because the victim says that i don't want to testify doesn't mean that the case against the defendant won't go forward. it may be more difficult for the prosecution to prove their case without the victim being a willing providing willing testimony, but it doesn't mean that the complaint goes away against the defendant. and there is an interesting protecting the integrity of those sorts of proceedings. >> miss herrick can i ask you a question about that? >> sure. >> so are you making a distinction between on this waiver issue if a complaintant

waived, you know, their own complaint as opposed to disclosure of the entire file, disclosure of just the complaint itself? that was made by the complaintant? versus the disclosure of the entire file. because of the review of the materials it looks like the request was for the entire files of the information not just the complaint itself, is there a distinction to be made there with respect to waiver. >> i would still say no, and would not make that distinction because there are reasons why the same sort of... when you have a potential whistle blower subject to some pressure, to provide a waiver, you don't know whether or not that has been willing or not by removing the ability of the whistle blower to make that kind of a waiver, i think that the integrity of the process is better protected. >> okay, thank you.

>> any other questions for miss herrick at this time? >> miss herrick, what about this idea that a evaluation under 1040 b2 has to be made on a document by document basis? >> what is your view on that? >> i think that you are making it on a... i mean, document by document every single piece of paper within the file? no. loosely we are saying that there is official information applies to this file that we are talking about, the file before the ethics commission, the file in the possession of the controller's office. and the communication between the two offices. i think that you are taking it

on a case by case basis. i don't think that this section requires a paper by paper review. if i were to say to every single piece of paper before the... within the controller office or the ethics commission, is the official information, i don't think that is true. i think that you would say no. correspondence is not, agendas of the ethics commission is certainly not necessarily protected by the official information privilege. i can think of a lot of other day-to-day operational business of the offices is you know, a public record, but not necessarily official information. so i think that you are making that analysis on a case by case basis. this is a file and a whistle blower complaint and the investigation by the ethics

commission as well. and those files are, they contain official information. >> so basically your point is that there is sufficient specificity to apply 1040 b20 the entire investigative file? >> that is right. because i am not saying that the ... i mean there is a myriad of documents. >> for example the controller's office produces,... i don't know if they did in this particular investigation, but in other audits that the controller's office may do, they will come up with a summary, conclusion, you know, an audit report of the public records that would not be something that is official information protected by that particular privilege. so there is much other work produced by both of those offices that are public records and not subject to the official information privilege. >> any other questions for miss

herrick? >> miss herrick, would you mind staying on the line? >> sure. >> i think that we should take public comment on this matter. >> i would like one minute rebuttal to miss herrick. i promise to keep it short. >> okay, mr. shaw i will give you that. >> so. what miss herrick may have missed and what you may have missed is when dr. ker r's complaint came before the ethics commission and was submitted to the ethics staff, you guys sat on it for six months and after those six months, you then rejected that case and you sent it right over to the city controller's office who finally got off their rear end and conducted an audit, after you said that you would

not take jurisdiction over it. >> your point being? >> i am truly trying to understand what the consequence of that is. >> i just find it quite strange. that you first rejected any jurisdiction of this case at all and now you are quibbling over which sections of the file are releasable and which aren't. >> if the matter is closed, any correspondence related to this complaint is not confidential. and it is part and parcel of what i asked for.

public comment? >> i will try to make this brief. the letter to miss herrick in may said, ethics commission, per your conversation, with johnson coy that is important. the ethics commission regularly handles the referals however it cannot adjudicate these matters as the executive director and any respondent both complaints? what are we doing? we are adjudicating it as we speak. the second thing is, i think that you can't vote. i think that your vote would be tainted in view of your e-mail. i think that you are missing two of the five commissioners. you will not have enough people, you need three and you in my view, should not be voting on this.

and i say that with... believe me, enormous respect for you personally, but you are doing what you did in the berkarivi case, but i do think that there is so much misinformation about what the law is under the sunshine rules, what is involved in the public records act and actually there is constitutional provisions regarding those very thing that you are doing which is interpreting a law in a public access case saying having said that, there was no hearing by miss herrick. she didn't hear anybody representing mr. shaw. and if there had been a hearing i might have shown up and some of these other folks might have shown up and given her some other ideas about how to do about this. but this was all prearranged.

you didn't know it was going down there. there is nothing in the file in this case that this body made a decision, we can't send it to oakland because they are a bunch of losers and we can't send it to berkeley because they are a bunch of losers, we will send it not to the election's commission but to a lawyer who works, i am sure, in much the same way that the city attorney works, which is to defend the bureaucracy. so in my view, it is a mistake for you to even try to adjudicate it today, without getting the opinion that you can do it. >> and most of the stuff is off the cuff. i would suggest that miss herrick look at the difference between government campaign and government conduct code sections 4.105 b, and 105 a. because they demonstrate that there is a difference between a

complaint filed with you, and a complaint that you are entitled to investigate under c3.699-13. i actually have a bunch of other points, but in view of the fact that my three minutes are up, i guess i can't make them. >> i'm the only lawyer on this side. thank you. >> thank you, mr. grossman. >> david pilpal i will try to be brief. there are a number of issues at play here. i was not a member of the sunshine ordinance task force at the time that this matter was heard and referred. i'm relying primarily on the memos from miss herrick, and some of the collateral materials that i have seen. i thought this was a fairly straight forward matter but i believe that it is more

complicated than i initially thought. i do believe that the commission is the proper place to air this and to make it a decision. i don't believe that it needs to go to any further outside body. and i generally concur, and i believe that i do concur with mr. gibner's analysis that under the charter only the ethics commission can make a final determination, even if some other body provider review and analysis. i think that mr. shaw was largely correct on the question of amrikbility of the balancing tests san francisco in the sunshine ordinance and the incorporation of the state law with some exceptions. i'm looking very carefully at the summary of the complaints in the two memos from miss herrick and it seems to me that the extent to which there is an

investigatory file at the city controllers office or that the commission has conducted an investigation, that those investigations are probably not subject to disclosure. but, the scope of the underlying request between the two offices related to the complaint seems to me to suggest a body of material that is beyond the investigatorry file itself and may include correspondence about the handling of the aspect and not the file itself and to the extent that any such records might exist, they to me, to my read might be subject to disclosure, albeit in a redacted form. i don't know if they exist, but that is my view on that with

regard to any closing memo, if there was i don't know what the language of a closing memo offered by the commission staff regarding this complaint refers to. again, if such a thing exists if it is not otherwise made confidential, and i need to analyze that further, i would think that it may be subject to disclosure, albeit in a redacted form. the question before you isn't whether these documents can be ordered disclosed, it is whether these officials have committed a violation of the ordinance. >> and that is itself, wrapped up into this analysis and i'm sorry i can't help you any further. i hope that does something to help. thanks. >> commissioners, ray heart, san francisco, open government, now that this ethics committee is holding meetings on sfgtv in